Friday, January 23, 2015

One of the most widely studied series of appeals in recent legal history to come out of the courts of Virginia has been the Miller-Jenkins cases, which involved a great many issues. The cases were about two women (Janet and Lisa) and a baby. They get a custody order in Vermont. Lisa files a case in Virginia and gets a different custody order in Virginia. The case goes up on the first appeal in Virginia. The Court of Appeals ruled that by operation of the federal Parental Kidnapping Prevention Act, the Circuit Court in Virginia lacked jurisdiction to contradict the Vermont order. Lisa files for an appeal to the Virginia Supreme Court but the petition was untimely.

Meanwhile Janet applies to the Juvenile Court to have the Vermont order registered in Virginia under the Uniform Act. Lisa appeals the registration order to Circuit Court, then to the Court of Appeals, then to the Virginia Supreme Court. On the second round of appeals, the Court of Appeals held and the Virginia Supreme Court agreed that all the issues that Lisa argued about why the Vermont custody order should not be registered in Virginia were barred by the prior rulings of the Court of Appeals in the first appeal, which became the "law of the case."

One of the cases that was cited by the Supreme Court in Miller-Jenkins is Norfolk & W.R. Co. v. Duke, 107 Va. 764, 60 S.E. 96 (1908). The Duke case says some very interesting things related to the "law of the case" doctrine. In Duke, the appellant in the second appeal claimed that the trial court lacked subject matter jurisdiction all along. The Supreme Court held that the issue of subject matter jurisdiction had not been discussed at all in the first appeal, by remanding the case, the issue of subject matter jurisdiction had of necessity been determined as part of the prior appeal, and therefore the issue of subject matter jurisdiction could not be reconsidered on the second appeal.That is a strangely advanced ruling for the Virginia Supreme Court in 1908. The federal courts generally recognize that the law of case applies or can apply to the issue of subject matter jurisdiction, but tthey did not always. See Bishop v. Smith, 760 F.3d 1070, 1084-85 (10th Cir. 2014); Alexander v. Jensen–Carter, 711 F.3d
905, 909 (8th Cir. 2013); Sierra Club v.
Khanjee Holding (US) Inc., 655 F.3d 699, 704 (7th Cir. 2011). When a lawyer argued to Judge Turk that a decision was too old to still be good law, he would ask when had the "Age of Enlightenment" occurred that made the judges smarter now than they were back then.

Thursday, January 22, 2015

I was on the road yesterday, but saw by way of the Virginia Lawyers' Weekly that the General Assembly has selected Judge Kelsey from the Court of Appeals for the vacancy on the Supreme Court created by the retirement of Chief Justice Kinser.This was my recommendation more then seven years ago, which is not to cast aspersions on those who have been made members of the Court during that interval - particularly since that would include every single one of them other than the new Chief Justice. The vacancies left by the retirements of Justices Lacy and Koontz, the appointments to the Fourth Circuit of Judges Agee and Keenan, and the passing of the former Chief Justice Hassell have all been filled been filled in the past seven years.I like to think that I am up to date, but I'm not sure whether I would recognize any of these new justices off the bench other than the one from Southwest Virginia.

Monday, January 19, 2015

Over a period of almost twenty years, I had a number of dealings with Patrick Mannix, now deceased. Mr. Mannix was a self-appointed government watchdog, focused on Washington County, Virginia, and the City of Bristol. Some people hated him, including some of my clients. Others thought he was great, including one of my lawyer friends. I saw him at a few government meetings and court hearings where his comments were quite offensive and unjustified, in my opinion. The last two cases I had in court with him, however, he was in good humor. In the next-to-last case, I showed up just before the time for the hearing and sat down next to him and explained that I would be his opposing counsel for the day. He laughed and said, "I'm glad you're here, I was feeling kind of lonely." In the last case he sued two parties, my client and another, the case was dismissed as to my client and a default judgment in his favor entered as to the other party. Later on the other party was trying to get out of the default and I was there complaining that the case could not be reopened, which was sort of Mannix's position as well. He grinned and told the judge, "whom am I to disagree with Mr. Minor's legal expertise? I agree with everything he said," which was the first and only time he ever said anything like that.

There was a seminar put on for the Richmond Bar Association in October 2013, with a discussion about the enforcement of orders in Juvenile Court, that included these materials. It included an article dated July 1, 2013, by Peter Vieth published in the Virginia Lawyers Weekly, about what is or was the practice in some Virginia courts of allowing the non-lawyer non-custodial parent to serve as the prosecutor in criminal contempt cases against the custodial parent related to visitation. Almost simultaneously, as a coincidence or not, the Unauthorized Practice of Law Committee considered and approved Proposed Opinion 217, which addressed this particular scenario. The proposed opinion concludes that the non-custodial parent as an extremely interested party is particularly unsuited to fulfill the ethical obligations of the prosecutor to pursue the public interest, and not merely to advocate one side of a dispute, citing In re: Richland County Magistrate's Court, 699 S.E.2d 161 (S.C. 2010). The State Bar Council never approved Proposed Opinion 217, for reasons that may have related to Va. Code § 19.2-265.01, which allows an exception to the rule on excluding witnesses for the "victims" of criminal offenses. "Victim" is a defined term under Title 19.2. Proposed Opinion 217 was sent back to the UPL committee for "further study."

In the usual visitation case, fines or imprisonment would only be "criminal" contempt sanctions, because they are neither prospective nor remedial. As the United State Supreme Court explained in the Bagwell case (that went from Southwest Virginia to the highest court), "a 'flat, unconditional fine' totalling even as little as $50 announced
after a finding of contempt is criminal if the contemnor has no
subsequent opportunity to reduce or avoid the fine through compliance." Sending someone to jail for what happened in the past is a criminal punishment. The classic civil remedial measure in the context of missed visitation would seem to be "make-up" visitation, which is not much discussed in the Virginia cases. In Florida, by contrast, there is an express statutory provision for makeup visitation: "When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court . . . [s]hall,
after calculating the amount of time-sharing improperly denied, award
the parent denied time a sufficient amount of extra time-sharing to
compensate for the time-sharing missed, and such time-sharing shall be
ordered as expeditiously as possible in a manner consistent with the
best interests of the child and scheduled in a manner that is convenient
for the parent deprived of time-sharing." Florida Statutes 61.13.

There is no Virginia case law that suggests that the non-custodial parent can be made whole by way of money damages for lost time with the child. It seems to me, anyway, that Virginia law does not permit compensatory damages for lost visitation time in any kind of case. The statute barring
claims for alienation of affections, Va. Code § 8.01-220, applies to emotional
distress damages. See McDermott v.
Reynolds, 260 Va. 98, 103, 530 S.E.2d 902, 904 (2000). Virginia law bars a civil action against the custodial parent for money damages on account of missed visitation.
SeeWyatt v. McDermott, 283 Va. 685, 701, 725 S.E.2d 555, 563 (2012) (such
claims “would be used as a means of escalating intra-familial warfare”). Compensatory
damages in civil contempt claims are limited to "pecuniary loss," see Deeds v. Gilmer, 162 Va. 157, 262,
174 S.E. 37, 79 (1934), which some courts have held to not include emotional distress damages. See, e.g., McBride v. Coleman, 955 F.2d
571, 577 (8th Cir. 1992) (overturning civil contempt award of emotional
distress damages); In re Walters, 868
F.2d 665, 670 (4th Cir. 1989) (same). The only case where such an award was enforced in Virginia that I have seen was with respect to a judgment entered by a Tennessee court under Tennessee law. Lutes v. Alexander, 14 Va. App. 1075, 421 S.E.2d 857 (1992).

It is even less likely that such damages can be awarded in Juvenile Court. Juvenile Court practice is constrained by statute. There are statutes which authorize "civil" and "criminal" contempt sanctions in Juvenile Court. Reference to the right statute should make a difference, since it is the first and perhaps the only indication at the beginning of the case as to the nature of the proceeding. A show cause summons citing Va. Code § 18.2-456 or Va. Code § 16.1-69.24 would seem to be the start of a criminal contempt case.See Storozum v. Chernin, Record No. 1073-03-4 (Va. Ct. App. Nov. 23, 2004)
(contempt case was "criminal" where the motions filed in juvenile court cited Va. Code § 18.2-456). The somewhat gratuitous reference to section 16.1-69.24 as providing for the appeal of "judgments for civil contempt" in a footnote to Justice Mims's dissenting opinion in DRHI, Inc. v. Stanback, 765 S.E.2d 9 (Va. 2014) probably does not trump the reference by the Court to section 18.2-456 as a "criminal contempt statute" in a footnote in Singleton v. Com., 278 Va. 542, 685 S.E.2d 688 (2009), even though section 16.1-69.24 does no more than to make section 18.2-456 applicable in the district courts. A summons citing Va. Code § 16.1-278.16 or Va. Code § 16.1-292 could be civil or criminal. One source that explains the difference between civil and criminal contempt is this page posted on behalf of the Juvenile Court in Lynchburg. There is a much more elaborate discussion of contempt in the District Courts in the District Court Judges' Benchbook, at pages 274 through 301. The Benchbook is perhaps the best resource on law and practice in the district courts.

In 2011, the United States Supreme Court decided Turner v. Rogers, which deals with the right to counsel in cases against parents who are hailed into to court in civil contempt cases for failure to pay child support. The Supreme Court held that there was no constitutional right to counsel as such, despite the risk of significant incarceration as a civil contempt sanction to coerce the payment of support. One of the considerations on which the decision was based was the simple fact that "sometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel." (Emphasis in the original.) The Court observed that giving a lawyer to the non-custodial parent to fight the civil contempt case would create an "asymmetry of representation" that would bog down the enforcement of the child support enforcement laws. A similar asymmetry results where visitation is enforced by criminal contempt. The custodial parent is entitled to counsel, and to all the rights of the criminal defendant, in a criminal contempt case - including a different and higher burden of proof, the testimonial privilege against self-incrimination, and at some level the right to trial by jury. The remedy for this imbalance is to funnel the cases toward civil rather than criminal contempt proceedings, instead of depriving persons charged criminally of their important statutory and constitutional rights.